Lord Moylan: My Lords, it is a great pleasure to follow my noble friend Lord Vaizey of Didcot. Might I say, before I get into my stride, that certain noble Lords may have received an email that emanated a week or so ago from what I call the “cold dip” wing of the Conservative Party. Essentially, the message was, “Those rotters Vaizey and Moylan are out to spoil our whizzo scheme”. This is not true, in my case. Unlike other speakers, I declare that I have no interests to declare. I am not aligned with the food industry, the advertising industry, the broadcasting industry or any of the charities that wish to restrict, ban or control various foods and drinks. That seemed to cause a little upset to the noble Baroness, Lady Boycott, who seemed to think that because I could speak in a disinterested fashion I was somehow precluded from taking part in the debate, but I hope noble Lords will not agree that is the case.
I have put my name to a number of amendments in the name of the noble Lord, Lord Vaizey. The ones I have signed up to are essentially to do with giving enough time to implement the ban, if it is brought into effect, and I hope that they are accepted. I note that  the Government have brought forward amendments of a similar character; they improve the Bill, but they do not go as far as they should. But it is a good sign, and it shows that what we are engaged in here is improving the Bill, not trying to destroy it.
I will add a particular word in support of my noble friend’s Amendment 247A, which seeks to make the identification of HFSS food a matter that would be subject to parliamentary scrutiny. In effect, what the Government are seeking through this schedule is a power to make binding law—with all the apparatus of fines and other enforcement—by way of mandatory guidance that will not be subject to parliamentary scrutiny. Instead, business planning and investment will always be at the whim of civil servants with no recourse to Parliament. That is not a situation that, in other circumstances, your Lordships’ House would feel comfortable with. We should apply the same standards here and insist that, with Amendment 247A, parliamentary approval is required before these punitive measures can be amended.
The other amendments in this group in my name cover a wide range of issues, but all of them are aimed at helping business plan for and implement the bans that the Government contemplate. That said, I noted last Friday that “Red Box” in the Times was reporting a change of heart by the Prime Minister on the whole policy of introducing the advertising and promotions ban. If this is true, we can happily move on and ignore Schedule 17, since all the evidence—including the Government’s own impact assessment—shows that the policy will, as my noble friend said, have a minuscule effect. The Government’s own assessment suggests that there will be a reduction of fewer than three calories a day. I ask my noble friend the Minister to confirm, when he wraps up, whether or not this planned change of policy is in hand.
Amendments 247, 250A and 253A in my name deal with the question of whether the ban applies to brand advertising and sponsorship—already mentioned by the noble Baroness, Lady Boycott, and my noble friend Lord Vaizey. This concerns advertising when no product of an unhealthy character is included in the advertisement or sponsorship statement. Putting the brand advertising exemption into the Bill is important for business—businesses which are looking for certainty as they are already planning advertising campaigns which will run after 2023.
The exemption for brand advertising was confirmed in Committee in the other place when the Minister there said:
“Products are deemed identifiable if a person could reasonably be expected to identify the advertisements as being for that product. This means that brand advertising is not in scope of the restrictions, as the purpose of the restrictions is to prohibit identifiable products.”—[Official Report, Commons, Health and Care Bill Committee, 26/10/21; col. 676.]
He made similar remarks on Report. This is helpful but putting the exemption into the Bill—alongside the other exemptions—would mean, should the Government wish to revisit this exemption in the future, that they would be obliged to return to Parliament to set out their reasons for doing so and seek the consent of both Houses.
The noble Baroness, Lady Boycott, commenting on this, seemed to say “Why do we need all this paraphernalia? Let’s just trust the Government and go with what they say”. I almost fell off my Bench when I heard her say that. So often in this House we are saying quite the reverse; we are saying let us not trust the Government and insist that, if we want something to happen, it should be on the face of the Bill. That is all I am saying. I believe the Government of course, and in my own small way I trust the Government—but Governments change. If we believe in this, let us see the Government put it on the face of the Bill. This has been called for by the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, which have signalled their dissatisfaction with this way of proceeding.
I turn to Amendments 249A, 252A and 257A in my name, which concern how the Government will assess the effectiveness of the ban. I am assuming, perhaps optimistically, that all noble Lords will agree that the restriction on freedom of expression involved in the Government’s policy should be continued only if it is seen to be effective in its purpose of reducing calorific intake. Indeed, that is the Government’s view, because the Bill contains a five-year review of the effectiveness of the restrictions, in line with better regulation principles, but it is not clear how “effectiveness” will be judged.
The purpose of my amendments is to seek some clarity on the issue now, as we adopt the new rules, so that the effectiveness criteria are not shaped retrospectively in five years’ time. This needs to be done now, in the interests of transparency and to enable the collection of data. It also needs to be done if the industry is to respond by changing its product mix—something which the noble Baroness, Lady Boycott, said she hoped for and looked forward to, and said there was evidence of its having done so in advance. But unless it understands in advance the criteria by which the ban will be judged effective, how can it possibly begin the process of changing the product mix to meet those criteria? The lack of impact of the ban is clear, but the criteria judging how it will be assessed effectively need to be addressed right at the outset.
There is also the question of what the Government will take into account in assessing those criteria. Their impact assessment envisages that the policy will likely reduce calorie consumption by around three calories a day, which is roughly equivalent to half a gram of butter, or one-five-hundredth of a standard pack of butter. This is so small as to be insignificant in terms of health benefits, yet the policy will undoubtedly have wider economic benefits, including on competition, innovation, prices, media revenues, advertising and the wider creative industries. Are the Government going to assess this wider picture?
There are also particular effects on certain industries. For example, I should not have been surprised about this, but I learned the other day that 90% of pizzas are now sold online, from which, presumably, their advertising is going to be banned. Where in the Government’s calculation of the effects of the total and, I would say, disproportionate ban on advertising HFSS online is  its effect on investment and employment in this sector? Will they be taking account of lost jobs and opportunities that could arise? For example, will the Government decide that the rules are effective based on a reduction in the amount of HFSS advertising that children see, or will they be looking at whether they lead to a decline in childhood obesity? If so, how will they evaluate the impact of the advertising bans as opposed to other measures being taken? Again, business needs to know now in order to plan and invest.
Next, my Amendment 257A would introduce a sunset clause so that, should the restrictions be ineffective, they would not continue indefinitely. There is no value in keeping rules in place if they are not fulfilling the purpose for which they were intended. That would just be bad lawmaking. Again, the noble Baroness, Lady Boycott, said that it is unprecedented to have such an excellent measure attached to a new set of regulations, but we are free of the European Union now and sunset clauses should be standard measures when we regulate something for the first time, should it turn out to be ineffective.
Amendments 248 and 251 in my name address an anomaly in the proposed advertising regulations regarding the food products that are within their scope. A daily serving of nuts has been found to reduce heart disease risk by 20%, so products made from nuts sold in bags are quite reasonably outside the scope of these proposed new restrictions, yet the same products in bar form are in scope—but the shape of a food is not a nutritional consideration. The proposed scope is inconsistent with well-established public health policies on foods that are beneficial to include in the diet, and the regulations are internally inconsistent. I ask my noble friend to review these inconsistencies and ensure that the new advertising restrictions support consumers in making healthier choices and incentivise food manufacturers to make the right kinds of products.
Similarly, Amendment 248A in my name relates to high-protein bars. It is already the case under EU regulations still in force in the United Kingdom that a claim that a food is low in sugars may be made only where the product contains no more than 5 grams of sugars per 100 grams for solids, or 2.5 grams of sugars per 100 millilitres for liquids. A claim that a food is high in protein may be made only where at least 20% of the energy value of the food is provided by protein. There are small businesses—one has approached me—that have carefully crafted their product to meet these regulations to put them in the category of good and healthy food. That is the purpose of the regulations. Yet those businesses’ high-protein, low-sugar bars, which have been operating perfectly lawfully until now, will fail to meet the Government’s new regulations as they stand and their advertising will come to an end. I ask my noble friend what assurance he can give them that their legitimate business is not in effect to be criminalised by this Bill.

Lord Stevens of Birmingham: As the noble Lord will know, the genuine problem that we have in this country is that unfortunately we are a world leader in childhood obesity. It therefore falls to us to take world-leading action to respond to that.
Even classical economic liberals will accept that children are not sovereign consumers. The noble Lord, Lord Vaizey, in his earlier remarks, said that there was no evidence that advertising leads to increased consumption. My noble friend Lord Krebs has comprehensively rebutted that point but, to underline the matter, I say that studies of children’s ventromedial prefrontal cortices—the areas of their brains associated with reward valuation—suggest that watching food commercials systematically alters the psychological and neurobiological mechanisms of children’s food decisions. Even small but sustained reductions in at-risk children’s calorific content provide demonstrable physiological benefit.
By the way, this figure of 1.7 grams or 3 grams, as my noble friend Lord Krebs pointed out, is a mistaken application of epidemiological maths—that is, dividing the assumed totality of calorific reduction against the totality of children on an even basis, when in fact the children who will disproportionately benefit are those who are disproportionately exposed and disproportionately obese.
Systematic evidence reviews conclude that
“screen advertising for unhealthy food results in significant increases in dietary intake among children.”
Therefore, once we have had the denial, the second tactic is to dilute the regulatory effort—to insert loopholes, to neuter regulators, to drive a coach and horses through what is proposed. We have a number of amendments which seek to do that. They pretend, as the noble Baroness, Lady Boycott, pointed out, that advertising to children of a smaller item is not in practice also advertising the identically packaged larger item. They exempt ads for certain bars which by themselves may contain half of a child’s maximum daily recommended sugar intake. They give a green light to brand advertising, even where children perceive the fast food or confectionary brand and its associated unhealthy products as essentially the same. Widespread evidence shows that current narrow restrictions on  children’s exposure to harmful junk food ads are routinely breached, and frankly these amendments seek to repeat the trick.
Even more absurdly, Amendments 245A and 250ZA would restrict harmful advertising only on a Saturday and Sunday. The noble Baroness, Lady Boycott, pointed out that those of us who are parents know that our kids are not exposed to screens only on a Saturday or Sunday; it turns out that Monday, Tuesday, Wednesday, Thursday and Friday are also days of pressure for those of us trying to be responsible parents. Or are we asked to believe that rising obesity in pre-school and school-age children does not happen on school days? If so, these amendments imply the discovery of a phenomenon unknown to medical science: weekend-only obesity.
Finally, when denial has been disproved and the dilution tactic has been debunked, the amendments try for delay—for more time to lobby for a weakening of the political will, to live to fight another day. “Lord make us pure, but not yet”; even St Augustine would blush at these amendments. Nor for that matter do government Amendments 249, 252 and 254 have anything to commend them. We have heard this morning a strange contradiction between the acknowledged urgency of the spiralling health crisis affecting our children versus the long and leisurely gap that some still want before further action is taken. These preventive measures were first announced by the Government in 2018. Three years is more than long enough to prepare and adapt. The Government’s goal is to halve childhood obesity by the end of the decade, but we are nowhere near being on track. We had better get on with it because, as the saying goes, children may be only a fifth of our population but they are 100% of our future. In the past, the blocking tactics of deny, dilute and delay have often succeeded—but today, perhaps not, because young people and parents want change, and because today, in this Bill, the Government are showing resolve; so too should we, my Lords.